Marriage contracts may initially seem unromantic. Thoughts often turn to: 'Someone wants to deprive me of what I am entitled to', or …
We hope this article replaces such concerns with a better understanding: a properly prepared marriage contract is intended to protect both parties. We first explain what it can regulate, then give examples where it is useful or necessary.
What can a marriage contract regulate?
Without a marriage contract, couples are subject to participation in acquired property. On divorce, property acquired through earnings during marriage is generally divided equally, while separate property, including inheritances, gifts and premarital assets, remains with its owner. A contract can replace this regime with separation of property or community of property. Under separation, each spouse retains their assets during and after marriage. Under community, property not classified as separate is shared.
Even if you retain participation in acquired property, you can modify it. Certain assets can be allocated to separate property so they are not divided on divorce, which may be useful for businesses. You can also agree that income from separate property remains separate. Without this provision, dividends on inherited shares count as acquired property and are generally divided equally on divorce.
Swiss law also allows arrangements for possible divorce consequences in a marriage contract. As with peace treaties concluded in peacetime, fair solutions are often easier to find before conflict arises. Maintenance and asset division can be addressed in advance. However, the court approves these terms at divorce only if they are not manifestly inappropriate. Terms based on financial circumstances that have substantially changed may no longer be suitable.
When is a marriage contract particularly advisable?
Having explained what can be agreed, we now outline the most common reasons for a marriage contract.
- Avoiding disputes
o Clear asset allocation and advance arrangements for divorce consequences reduce the potential for disputes, because the terms were agreed while relations were peaceful.
- Protecting a business
o A self-employed spouse may allocate the business to separate property so it need not be divided on divorce. Income from it can also remain separate for reinvestment. In return, maintenance or other benefits can be agreed for the partner.
- Maximising the surviving spouse's benefit
o If you wish to avoid your spouse having to sell the house to satisfy other heirs on your death, arrangements can be made, for example, for joint children to receive their inheritance only after the second parent's death.
There are many other situations where a marriage contract is important. We recommend considering one for almost all couples: clear allocation of assets and arrangements for potential divorce consequences can prevent future disputes and uncertainty during marriage.
We can assess whether a marriage contract suits you, advise you and prepare terms tailored to your needs, supporting a secure future.